HEALTH CARE

Justice Kennedy Tough on the Insurance Mandate

People sit in line late Monday, March 26, 2012 waiting for limited access for Tuesday morning's Supreme Court hearing on the Affordable Care Act.(Richard A. Bloom)

“Can you create commerce in order to regulate it?” Supreme Court Justice Anthony Kennedy asked in his opening question on Tuesday as the court examines whether the health care law’s individual mandate is constitutional.

Kennedy was generally seen as a swing vote on the case, and he offered some tough questions for the Obama administration, which is defending the need to make people get health insurance or pay a penalty.

Kennedy’s questions didn’t reveal a definite position, but he seemed quite concerned that a vote to uphold the requirement to obtain health insurance might open the door for a significant broadening of Congress’s power. At one point, he suggested that the law could represent an “unprecedented act” that “changes the relationship between the federal government and the individual in an important way.”

Unsurprisingly, the four democratic nominees—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotamayor, and Elena Kagan—seemed sympathetic to the government’s defense of the law, at times offering Solicitor General Donald Verrilli helpful answers to their colleagues’ questions. Justices Samuel Alito and Antonin Scalia—who had been considered by some court watchers to be in play—seemed to stand with the challengers. (Justice Clarence Thomas, who did not ask any questions, is considered to be a safe vote for the challengers.)

Which left Kennedy, ever the court’s swing vote. And Chief Justice John Roberts, whose questions suggested a discomfort with the health care law, but who also defended the government’s argument at times.

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The suit was brought by the attorneys general of 26 states, the National Federation of Independent Business, and a few individual business owners who object to the law’s requirement that most Americans obtain insurance or pay a penalty. The challengers say it is an unprecedented demand, one that regulates economic “inactivity” and forces people into purchasing a product they do not want. If the government can compel the purchase of health insurance, they argue, then nearly any sort of purchase mandate could also be permitted. “It is the power to compel people into commerce,” said Paul Clement of Bancroft PLLC, who is representing the states.

The government counters that there’s basically no avoiding the health care market—everyone enters it at some time, often with little warning or financial preparation. Health insurance is not a standalone product, but merely a means of regulating the financing of that activity, it says.

In the balance is President Obama’s signature health care reform law. In two polls, veteran court-watchers have predicted a victory for the government in the case. But yesterday’s icy questions suggest that several justices have constitutional doubts about the law.

Kennedy and Roberts seemed particularly concerned about the question of whether upholding this law would mean that Congress's authority to pass regulation would be virtually unbounded. They repeatedly asked the Verrilli to identify a limiting principle that would allow this mandate to go forward without permitting mandates to purchase other products. (Among those mentioned by the various justices were burial insurance, cell phones, electric cars, gym memberships, and the now-famous broccoli.)

“This is not a purchase mandate,” Verrilli said. “This is a law that regulates the method of payment.”

The government’s argument was based on the reality that some people without insurance suffer unforeseen health care crises they can’t finance, passing those costs along to the insured population. Roberts wondered, then, why the health care law did not simply cover catastrophic care.

“It seems to me that you cannot say that everybody is going to need substance use treatment or pediatric services, and yet that is part of what you require them to purchase,” he pointed out.

Scalia had written an opinion in a prior Commerce Clause case that suggested he could be sympathetic to the government’s arguments on health care. But his aggressive questions at argument suggest that he is a likely vote against the mandate.

“This may be necessary, but it’s not proper,” he said in one of a series of critical comments about the insurance mandate. “The federal government is not supposed to be a government of all powers; it’s a government of limited powers.”

Tomorrow, the Court turns to the question of what it will do if it does strike the mandate down. The government is asking it to strip away a trio of insurance reforms as a group. The challengers say the entire law must go.

Tomorrow will also feature arguments on a separate constitutional challenge to the law: the contention that the law’s expansion of Medicaid coerces the states.